Legal Studies

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https://hdl.handle.net/20.500.14018/13722

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Research Paper On The Legal Framework For Civil Rights Protection In National And International Context
(2015) Eijken, Hanneke van; Vries, Sybe de; Granger, Marie-Pierre; Salát, Orsolya; Puetter, Uwe; Rico, Clara I. Velasco; Department of Legal Studies; Department of Public Policy
Abstract ; The UU team, Dr. Hanneke van Eijken and Professor Sybe de Vries, in coordination with the CEU research group (Dr. Marie-Pierre Granger and Dr. Orsolya Salát), has prepared a synthetic report,which provides a critical overview of the civil rights of EU citizens and third-country nationals in selected Member States (Belgium, the Czech Republic, Denmark, France, Germany, Hungary, Italy, Spain, the Netherlands and the United Kingdom and Ireland). The analysis carried out for Deliverable 7.1 focuses on the recognition and scope of civil rights of EU citizens and third-country nationals by national, European and international law. The national reports reveal that the main sources of civil rights in the different countries are the national constitutions and specific national legislation, the European Convention of Human Rights and the EU Charter. In substantial terms, the civil rights are quite similar and entail, for instance, the freedom of expression and the right to a fair trial, freedom of association and assembly. The scope and recognition of civil rights in the countries assessed is nonetheless dependent on the national legal system and its openness to international and European civil rights. The application of the EU Charter is increasing in national case law. The ECHR seems, however, to be the main source of reference for international civil rights by national courts. Awareness of the civil rights in the EU Charter could thus be improved. A particular difficulty with the Charter is that it is only applicable within the scope of EU law, with the consequence national courts may be inclined to rely on the ECHR when in doubt as to whether the EU Charter is applicable to a specific national case. In terms of barriers to citizenship, it seems that, as a preliminary conclusion, the recognition of civil rights is much dependent on national legal systems and that judicial practice show a preference to refer to the ECHR over the EU Charter. There are, however, signs that this is slowly changing. In most countries, the national legislation lacks references to the EU Charter or the ECHR. Nevertheless, most of the international and European civil rights are recognized in national law, because these norms are directly applicable or because these norms are transposed into national law.
Framing justice claims as legal rights : How law (mis-)‍handles injustices
(Edward Elgar Publishing Ltd., 2019-01-01) Granger, Marie Pierre; Salát, Orsolya; Department of Legal Studies; Department of Public Policy
Scholars disagree as to whether law ought to include justice considerations, and whether it can effectively address injustices, such as misrepresentation, maldistribution or misrecognition, through the conferral and enforcement of legal rights. In this chapter, we address these questions, drawing on research carried in the ETHOS project involving a theoretically informed ‘black-letter’ law analysis of international, European, national and local legal frameworks which regulate voting, housing and education in six European countries (Austria, Hungary, the Netherlands, Portugal, Turkey and the United Kingdom). We outline the relative importance of rights as a vehicle for justice in the European context, before introducing key theoretical debates on the relationship between law and justice, and relevant conceptual features of legal rights, pointing to some of the challenges of framing different justice claims as rights in Europe. We then explore the scope and limits of addressing injustices through invoking and enforcing rights, by analysing how legal systems approach justice claims as legal rights and how they manage the confrontation between competing conceptions or dimensions of justice, expressed as conflicts between rights, between rights and other legally protected interests, between overlapping and competing legal orders, and between law and politics (judicial deference). We conclude on the implications for achieving greater justice in Europe, and in particular the prioritization of certain justice claims, groups, or processes over others. In relation to the rights and policy contexts explored (vote, housing, education), the framing of justice claims as rights serves better the recognitive justice claims of selected groups, but struggled with promoting more equalitarian redistributive justice or challenging institutional obstacle to equal political representation.
States as Successful Litigants before the European Court of Justice: Lessons from the ‘Repeat Players’ of European Litigation
(2006) Granger, Marie-Pierre; Department of Legal Studies; Department of Public Policy
Despite the importance of the role of the European Court of Justice (ECJ) in European integration, its decision-making process is little studied. In particular, the interactions between the political and the legal arena deserve greater attention. Member States’ governments and the ECJ are usually presented as two separate and competing entities, whilst in fact there is a great deal of interaction between these two institutional actors. This article, based on extensive comparative empirical research, uses US sociolegal scholarship on litigation to analyse governments’ litigation in a way which contributes to current theoretical understandings of judicial decision-making, European integration and Europeanisation. It identifies, describes, compares and analyses governments’ EU litigation strategies, in order to assess whether and how governments influence European legal developments through litigation. It also stresses the need for governments of the new Member States and candidate countries to understand the importance of adopting a strong and consistent EU litigation strategy, so as to play their part in the development of EU law.
Non-judicial remedies : Company-based grievance mechanisms and international arbitration
(Taylor and Francis, 2017-01-01) Häusler, Katharina; Lukas, Karin; Planitzer, Julia; Ruiz, Pablo Paisán; Yiannibas, Katerina
The Revised European Social Charter : An Article by Article Commentary
(Edward Elgar Publishing Ltd., 2021-01-01) Lukas, Karin
This detailed Commentary explores the boundaries of social rights at a European level through analysis of the Revised European Social Charter (RESC), the most comprehensive regional document on social rights. The Commentary considers the treaty as the counterpart of the European Convention on Human Rights, examining how it sets out fundamental rights in the social field. It focuses primarily on the rich jurisprudence developed by the Charter’s monitoring body, the European Committee of Social Rights (ECSR).
The constitution of illiberal democracy as a theory about society
(2019) Sajó, András; Department of Legal Studies
Relying on Grażyna Skąpska’s theory of the constitution as a theory of the society, the paper considers the ‘theory of the society’ provided by the constitutions (public law) of illiberal political regimes, applying a socio-legal perspective. Illiberal democracies are understood as electorally endorsed regimes produced by populism. The present paper concentrates on EU member states, using Hungarian examples. The constitution is understood as a symbolic order with a vision of society that changes social and political realities. The paper argues that illiberal constitutions do not need to depart from mainstream liberal constitutions, notwithstanding the strong nationalist element. The constitutional reality is mostly sub-constitutional and it operates at the level of statutes. The emerging political structure is based on the primacy of the executive branch which in turn serves personalistic rule in the tradition of Weberian Caesarism. The rule is centralistic and creates and consolidates social, cultural and economic dependencies. Following Szelényi and Max Weber, this traditionalist, and therefore antiliberal society (or the selection of these social structures among competing formations by the political management of the society) is described in terms of neo-feudalism. The emerging social relations are reflected in and enabled by public law. The illiberalism of the regimes is not imposed on society and it is greeted as liberation by a considerable part. This genuine sentiment, together with electoral and media manipulation is capable to sustain the illiberal personalistic regime through formally democratic processes.
The Rule of Law as Legal Despotism : Concerned Remarks on the Use of “Rule of Law” in Illiberal Democracies
(2019-11-01) Sajó, András; Department of Legal Studies
Militant Rule of Law and Not-so-Bad Law
(2024-05-02) Sajó, András; Department of Legal Studies
The article provides intellectual arguments and tools from legal dogmatics that can help to counter the rule of law backlash. It argues that resilience can be boosted by a systemic militant rule of law approach. When it comes to restoring the rule of law, legal theory turns to the Radbruch formula (supra-statutory law). This approach remains contested by lawyers who are convinced – following the tradition of positivist legal theory – that invoking this formula is unacceptable because it violates a fundamental requirement of the rule of law, namely that of legality. Irrespective of the value of this concern, Radbruch’s formula is not applicable to the current demise of the rule of law, as the law resulting from cheating and abuse in illiberal regimes does not result in evil law (though it may facilitate such developments). Instead of evil law, we face not-so-bad law. Legal imperfections exist in every legal system, and militant rule of law necessitates the systemic revision of these shortcomings in order to preempt the abuses of an anti-formalistic populist regime. In illiberal regimes, the self-corrective mechanisms of the rule of law are gradually eliminated, but the name of the game remains the rule of law. It means that judges still have (some) power to counter the backlash using extant interpretive techniques (for a while). This article will begin by introducing the concept of not-so-bad (NSB) law as an imperfection of the rule of law. In Part Two, the validity of NSB laws is discussed by relying on the source theory. It argues that even if validity is a matter of conformity to the source, the source can be understood to contain a legal merit component as determined by the rule of law, and falling short on this legal merit component can constitute a ground for declaring the norm’s invalid. Part Three describes the abuses of the rule of law in illiberal democracies and describes how the NSB law of illiberal regimes does not satisfy the validity requirements of legal positivism. Part Four discusses the opportunities open to judges for resisting or undoing NSB law using existing techniques of legal interpretation and without violating rule of law principles.
From refuge to trap : formalist misadventures of Poland’s postsocialist legal profession
(2019-09-02) Kisilowski, Maciej; Department of Legal Studies
Since 2015 the populist government of the Law and Justice Party in Poland has spearheaded a highly effective campaign against the country’s lawyers, encountering relatively muted social opposition. Using Bourdieuan lenses, the article traces the roots of that remarkable institutional weakness of the Polish legal profession to the highly formalist approach to law and legal thinking that Poland’s lawyers espoused. Prior to the fall of communism, and in democratic Poland, the role of lawyers in society was to act as guardians of “neatness” of the legal system–or that system’s internal clarity, cohesion, and completeness. Such a sterile approach to legal practice was initially attractive, among other reasons, because it protected the legal profession from difficult legitimacy challenges stemming from that profession’s pre-1989 coexistence with the communist regime. With time, however, the refuge that formalism offered became a trap that undermined lawyers’ political and economic power.
Bargaining and Nonbargaining Nonmarket Strategies : A General Model and Data From Post-Communist Countries
(2023-11) Akbar, Yusaf H.; Kisilowski, Maciej; Department of Economics; Department of Legal Studies
This article addresses a theoretical gap in the literature by highlighting the significance of nonbargaining nonmarket strategies of firms. Relying on neo-statist political theory, we propose a theoretical model that hypothesizes a reliance on nonbargaining nonmarket strategies in situations marked by historically and situationally conditioned weakness of societal forces relevant to a firm (including the firm itself) as well as when relevant state institutions display high degrees of professional, structural, and ideological bureaucratic insularity. We survey 165 managers (each representing a separate firm) from 14 countries in Eastern Europe and Central Asia about the strategic importance of the nonmarket strategic initiatives. Our novel survey instrument captures a broader range of nonmarket strategic initiatives than previous empirical research has examined. The survey results provide preliminary support for our model, although the findings suggest the need for more research in different regional contexts.
Between confrontation and cooperation : Right to water advocacy in the courts, on the streets, and at the capitols in the United States
(2021-12-01) Kozikis, Sabrina; Winkler, Inga T.; Department of Legal Studies
Communities across the United States face a widespread water crisis including risks of contamination, rate increases, shut-offs for non-payment, and dilapidating infrastructure. Against this background, a right to water movement has emerged which has found its strength in coalition-building and collectivity. Activists demand change using the framing of “water is a human right”, socially constructing the right to water from below. Based on more than 25 semi-structured interviews with water advocates and activists, our article explores how movement participants used the human rights framework to advocate for clean and affordable water for all. We used political opportunity theory and conceptions of government “openness” and “closedness” to examine when and how advocates decided to use confrontational and cooperative approaches. We identified a push and pull of different strategies in three key spaces: in the courts, on the streets, and at the Capitols. Advocates used adversarial approaches including protests and civil disobedience, reliance on human rights mechanisms, and to a more limited extent litigation simultaneously with cooperative approaches such as engaging with legislators and the development of concrete proposals and plans for ensuring water affordability. This adaptiveness, persistence, and ability to identify opportunities likely explains the movement’s initial successes in addressing the water crisis.
The messiness of the menstruator : assessing personas and functionalities of menstrual tracking apps
(2022-02-01) Pichon, Adrienne; Jackman, Kasey B.; Winkler, Inga T.; Bobel, Chris; Elhadad, Noimie; Department of Legal Studies
Objective: The aim of this study was to examine trends in the intended users and functionalities advertised by menstrual tracking apps to identify gaps in personas and intended needs fulfilled by these technologies. Materials and Methods: Two types of materials were collected: a corpus of scientific articles related to the identities and needs of menstruators and a corpus of images and descriptions of menstrual tracking apps collected from the Google and Apple app stores. We conducted a scoping review of the literature to develop themes and then applied these as a framework to analyze the app corpus, looking for alignments and misalignments between the 2 corpora. Results: A review of the literature showed a wide range of disciplines publishing work relevant to menstruators. We identified 2 broad themes: "who are menstruators?"and "what are the needs of menstruators?"Descriptions of menstrual trackers exhibited misalignments with these themes, with narrow characterizations of menstruators and design for limited needs. Discussion: We synthesize gaps in the design of menstrual tracking apps and discuss implications for designing around: (1) an irregular menstrual cycle as the norm; (2) the embodied, leaky experience of menstruation; and (3) the varied biologies, identities, and goals of menstruators. An overarching gap suggests a need for a human-centered artificial intelligence approach for model and data provenance, transparency and explanations of uncertainties, and the prioritization of privacy in menstrual trackers. Conclusion: Comparing and contrasting literature about menstruators and descriptions of menstrual tracking apps provide a valuable guide to assess menstrual technology and their responsiveness to users and their needs.
Erratum : The Messiness of The Menstruator: Assessing Personas and Functionalities of Menstrual Tracking Apps
(2022-02-01) Pichon, Adrienne; Jackman, Kasey B.; Winkler, Inga T.; Bobel, Chris; Elhadad, Noémie; Department of Legal Studies
In the originally published version of this manuscript, Figure 4 was mistakenly published without author approval and a funding statement was omitted. The publisher apologizes for the error.
Menstruation, Myopia, and Marginalization : Advancing Menstrual Policies to “Keep Girls in School” at the Risk of Exacerbating Inequalities
(2022-12) Alhelou, Nay; Kavattur, Purvaja S.; Olson, Mary M.; Rountree, Lillian; Winkler, Inga T.; Department of Legal Studies
As countries across the world adopt policies addressing menstruation, it is imperative to identify who benefits from such policies and to understand the dynamics of inclusion and exclusion. We examine such policies through the lens of human rights, as a framework that demands addressing marginalization, ensuring substantive equality, and guaranteeing inclusive participation to ensure that the menstrual needs of everyone, everywhere are met. Our review is focused on four countries (India, Kenya, Senegal, and the United States) and is based on data from 34 policy documents and interviews with 85 participants. We show that girls, particularly school-going girls, are the main target group of policies. Due to this myopic view of menstrual needs, policies risk leaving the needs of adult menstruators, including those experiencing (peri)menopause, unaddressed. Moreover, the intersection between menstrual status and markers of identity such as disability and gender identity produces further policy gaps. These gaps can be attributed to the exclusion of marginalized menstruators from decision-making processes by creating barriers and failing to ensure meaningful inclusive participation. To address inequalities, policy makers need to make a concerted effort to understand and accommodate the needs of menstruators in all their diversity.
The effects of racism, social exclusion, and discrimination on achieving universal safe water and sanitation in high-income countries
(2023-04-01) Brown, Joe; Acey, Charisma S.; Anthonj, Carmen; Barrington, Dani J.; Beal, Cara D.; Capone, Drew; Cumming, Oliver; Pullen Fedinick, Kristi; MacDonald Gibson, Jacqueline; Hicks, Brittany; Kozubik, Michal; Lakatosova, Nikoleta; Linden, Karl G.; Love, Nancy G.; Mattos, Kaitlin J.; Murphy, Heather M.; Winkler, Inga T.; Department of Legal Studies
Drinking water and sanitation services in high-income countries typically bring widespread health and other benefits to their populations. Yet gaps in this essential public health infrastructure persist, driven by structural inequalities, racism, poverty, housing instability, migration, climate change, insufficient continued investment, and poor planning. Although the burden of disease attributable to these gaps is mostly uncharacterised in high-income settings, case studies from marginalised communities and data from targeted studies of microbial and chemical contaminants underscore the need for continued investment to realise the human rights to water and sanitation. Delivering on these rights requires: applying a systems approach to the problems; accessible, disaggregated data; new approaches to service provision that centre communities and groups without consistent access; and actionable policies that recognise safe water and sanitation provision as an obligation of government, regardless of factors such as race, ethnicity, gender, ability to pay, citizenship status, disability, land tenure, or property rights.
MANstruation : A cyberethnography of linguistic strategies of trans and nonbinary menstruators
(2023-07-01) Kosher, Rowena B.D.; Houghton, Lauren C.; Winkler, Inga T.; Department of Legal Studies
Trans and nonbinary experiences of menstruation are subject to menstrual discourse that is deeply gendered. Terms such as “feminine hygiene” and “women's health” make trans and nonbinary people acutely aware that they fall outside of the ideal of the default menstruator. To better understand how such language affects menstruators who are not cis women and what alternative linguistic strategies they adopt, we conducted a cyberethnography of 24 YouTube videos created by trans and nonbinary menstruators, along with their 12,000-plus comments. We observed a range of menstrual experiences—dysphoria, tensions between femininity and masculinity, and transnormative pressures. Using grounded theory, we identified three distinct linguistic strategies vloggers adopted to navigate these experiences: (1) avoiding standard and feminizing language; (2) reframing language through masculinization; and (3) challenging transnormativity. The avoidance of standard and feminizing language, coupled with a reliance on vague and negative euphemisms, revealed feelings of dysphoria. Masculinizing strategies, on the other hand, navigated dysphoria through euphemisms—or even hyper-euphemisms—that showed an effort to reclaim menstruation to fit within the trans and nonbinary experience. Vloggers responded through tropes of hegemonic masculinity, using puns and wordplay, and sometimes relying on hypermasculinity and transnormativity. Transnormativity, however, can be polarizing, and vloggers and commenters who rejected stratification of trans and nonbinary menstruation challenged it. Taken together, these videos not only uncover an overlooked community of menstruators who demonstrate unique linguistic engagement with menstruation, but they also reveal destigmatization and inclusion strategies that can inform critical menstruation activism and research as a whole.
Its manifestations may vary, but menstrual stigma is universal
(2024-01-01) Winkler, Inga T.; Lhaki, Pema; Baumann, Sara E.; Department of Legal Studies
Judicial Review Systems in West Africa : A Comparative Analysis
(International IDEA, 2016) Böckenförde, Markus; Kante, Babacar; Ngenge, Yuhniwo; Prempeh, H. Kwasi; Department of Legal Studies
The legal systems in West African countries are diverse. They have their foundations in different colonial heritages and have been shaped by a variety of customary and religious norms, which affects the design of each country’s judicial system. At the same time, this region is growing together under the umbrella of the Economic Community of West African States. This book compares the constitutional justice institutions in 16 West African states and analyses the diverse ways in which these institutions render justice and promote democratic development. It also seeks to facilitate mutual learning and understanding among countries in the region, especially those with different legal systems, in efforts to frame a common West African system. There is no single best approach: different legal traditions tend to produce different design options. The authors analyse a broad spectrum of issues related to constitutional justice institutions in West Africa. While navigating technical issues such as competence, composition, access, the status of judges, the authoritative power of these institutions and their relationship with other institutions, they also take a novel look at analogous institutions in pre-colonial Africa with similar functions, as well as the often-taboo subject of the control and accountability of these institutions.
Constitutional review in Africa
(Edward Elgar Publishing Ltd., 2022-12-06) Böckenförde, Markus; Dixon, Rosalind; Ginsburg, Tom; Abebe, Adem K.; Department of Legal Studies
Behind the Iron Curtain: The Surprising Soviet Influence on Western Justice
(2025-04-02) Saputra, Beny; Department of Legal Studies
In the shadow of the Cold War, as the world watched two superpowers locked in ideological combat, an unexpected legal revolution was quietly unfolding. While politicians and generals strategized over potential battlefields, Soviet legal innovations were stealthily crossing borders, reshaping Western justice systems in ways that would have been unimaginable to many at the time. John Quigley's “Soviet Legal Innovation and the Law of the Western World” unveils this hidden narrative, challenging our understanding of the 20th-century legal evolution and forcing us to reconsider the complex legacy of Soviet jurisprudence in the modern Western legal landscape. Published in 2007, “Soviet Legal Innovation and the Law of the Western World” by John Quigley offers an interesting examination of the often-underestimated influence of Soviet legal concepts on Western law. Professor Quigley, a law professor at Ohio State University, challenges the commonly held beliefs concerning the relationship between Western and Soviet legal systems throughout the 20th century. The book's central premise is that contrary to popular belief, certain Soviet legal innovations gradually infiltrated Western legal systems, effecting significant and unexpected transformations. Quigley extensively examines this influence across various legal domains, including labor law, family law, human rights, women’s rights, international law, criminal justice, and economic rights. By examining the secret narrative of legal cross-fertilization, the author encourages readers to reevaluate their understanding of the 20th-century legal development and the complex legacy of Soviet jurisprudence within the modern Western legal framework. This book challenges our ideas regarding the Cold War era and provides an insightful investigation of the surprising ways in which legal systems can influence one another across ideological divides.

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